UNDUE INFLUENCE IN THE FORMATION OF A WILL OR TRUST: VALID OR NOT?

A will or trust created just before a person dies that favors one or more children but excludes the other children may be subject to a challenge and would be found invalid if obtained by undue influence. Undue influence is defined as when one person overcomes the free will of another so that the desires of that person conform to the desires of the “undue influencer.”

What makes up undue influence depends on the facts of each case. There are at least eight factors that are reviewed, however, to determine whether there was undue influence:

1. whether there were any fraudulent representations made to the deceased;
2. whether the person that benefitted from the new will or trust was active in procuring the new will or trust;
3. whether the new will or trust was done hastily;
4. whether the new will or trust was concealed from others;
5. whether the transfers of the deceased assets are consistent with prior statements of intent;
6. whether the new asset transfers are reasonable in view of the deceased’s attitudes toward family;
7. whether the decedent was susceptible to undue influence as a result of physical, mental or emotional needs; and
8. whether the deceased and the undue influencer had a confidential relationship or the influencer was in a position of trust and confidence. Whether a person is in a position of trust and confidence will depend on the facts but can be someone who is a joint tenant with a vulnerable adult.

These above factors are not exhaustive and not all must be found to conclude that the will or trust is invalid due to undue influence. In addition, Arizona law may provide additional remedies under the laws that protect vulnerable adults. These laws provide, among other things, that a person in a position of trust and confidence with a vulnerable adult, who takes the vulnerable adult’s assets may have his or her inheritance revoked or property rights severed by the court.

If you are having doubts about whether your parent or parents really intended to leave you out of their will or trust, give us a call. There are time limits in bringing an action to challenge the validity of an Arizona will or trust. If you suspect something is improper, do not delay in obtaining legal advice.